State Consumer Disputes Redressal Commission
Kishorsinh M Vaghela vs Parth Hospital on 14 June, 2023
Details DD MM YYYY
Date of Judgment 14 06 2023
Date of filing 02 11 2015
Duration 12 07 07
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT NO.2
Complaint no. 128 of 2015
APPLICANT: [1]. Kishorsinh M. Vaghela
[2]. Jagjitsinh K. Vaghela
All Reside at:
Plot No. 578/A-1
Vastunirman Society,
Sector-22, Gandhinagar
VS
RESPONDENT: [1]. Parth Hospital
[2]. Dr. Kaushik Gajjar
Having their address:
Nr. Ramji Mandir, Ramnagar,
Sabarmati, Ahmedabad-380005
CORUM: Mr. R.N. Mehta, Member
Appearance: Mr. M.K. Joshi Advocate for Applicant
Mr. Narendra S. Tahilramani and Ms. Sangeeta Rastogi
Advocates for the Respondent No.1 & 2
(ORDER By Mr. R.N. Mehta, Member)
[1]. This complaint was presented by legal heirs of the deceased Hansaben Vaghela (herein after referred as "Patient") and claimed Rs.20,00,000/- towards the compensation for loss of life of Hansaben. Rs. 20,00,000/- towards the amount of expenses incurred for the treatment and Rs.
Rnm cc1282015 Page 1 of 205,00,000/- towards sufferance to the deceased. The complaint was presented under the provision of Section 12 read with Section 17 of the Consumer Protection Act, 1986 (herein after referred as "an Act" or "Act") and alleged in complaint "deficiency" in „service‟ coupled with „negligence‟ on the part of opponent doctor and hospital, who rendered medical services to the patient.
[2]. It is stated in complaint that complainant No. 1 is husband and complainant No. 2 is son of deceased Hansaben Vaghela. The complainant state that she had complaint of vomiting during April, 2014 and therefore, consulted family physician Dr. M.D. Zala. After examining, Dr. Zala prescribed certain medicines, which were taken by the deceased. When it was not giving any signs of improvement, doctor recommended for sonography, which was carried out and it revealed that the deceased had gall bladder stone.
[3]. The complainant No. 2 therefore, taken patient to opponent No. 1, hospital where opponent No. 2 examined the patient on 08/04/2014. After examination, the opponent No. 2 (herein after referred as "surgeon") advised for indoor hospitalization and also recommended for the surgery. The patient got herself admitted under the care of surgeon. It is alleged in the complaint that the surgeon without pre-operative pathological and diagnostic investigations fixed the date of operation i.e. 09/04/2012. It is stated that during indoor hospitalization, neither any doctor had examined her nor gave any medicines. On the next day, patient was taken to Operation Theater by the staff. Even, on that day, none examined patient for pre-operative assessment. At no point of time, the complainants were introduced any person as an anesthetist and therefore, they are not sure about the presence of anesthetist on the day of operation. It is alleged that the opponent doctor never asked for the consent of patient but staff member asked to complainant No. 2 to sign on a blank form for consent. It is further alleged in the complaint that Rnm cc1282015 Page 2 of 20 what had happened inside operation-theater that is not known to the complainant, but after about an hour or so somebody from staff member came out of operation theater and informed the complainant No. 2 that patient has started vomiting, become serious, having respiratory distress, and now unconscious. The complainant states that even today also (i.e. date of filing of complaint) the opponent doctor has not explained satisfactorily to the complainants as to what had happened within four wall of the operation theater. It is stated that though he being most qualified surgeon, became confused and found himself unable to handle the situation. It is alleged in the complaint that surgeon or the hospital had neither any lifesaving equipment nor any assistant to cooperate in critical situation. It is alleged that doctor even did not felt it proper to call cardiologist or pulmonologist or any other expert for the assistance. The surgeon thereafter advised shifting of patient to Indus Hospital in the name of safety for patient and in such circumstances, complainant left with no option but to follow the same as the condition of patient was critical and there were no help from the surgeon or the hospital. It is alleged that even medical records were not given to the complainant while shifting patient.
[4]. The complainants stated that patient was kept on the ventilator in Indus Hospital in ICU till 17/04/2014. But there was no improvement in patient‟s health condition; on the contrary, it started deteriorating. The complainant also stated that Dr. Manoj Singh, visiting doctor in Indus Hospital, further advised to shift patient from Indus hospital to Apollo Hospital. Accordingly patient was shifted to Apollo Hospital with life support system in ambulance with a team of doctors on 17/04/2014. The complainants stated that patient was hospitalized in Apollo Hospital for the period from 17/04/2014 to 15/05/2014 and during this period she suffered from cardiac arrest and was also detected having diabetes. The complainant alleged that prior to admission to opponent Hospital, Rnm cc1282015 Page 3 of 20 patient neither had any heart ailment nor diabetes but both these ailments seem to have developed during the treatment rendered at opponent hospital and thereafter. Because of this, body of patient became very weak as she was unable to move. Though it was month long hospitalization in ICU, there was no apparent change in the physical condition of patient and therefore, she was given discharge from the Apollo Hospital with recommendation to provide nonstop oxygen support and also prescribed injections as follow-up treatment. After about 2 months thereafter, again condition of the patient deteriorated and she was hospitalized at Apollo Hospital with life support system. She was subjected to series of investigations or diagnostic tests and on 18/08/2014, she was discharged from the hospital. As she was not keeping good health ultimately she breathed last on 21/09/2014 after short re-hospitalization at Apollo Hospital. Thus, patient, who was keeping otherwise good health condition, opted for surgery for gall bladder stone, but lost her consciousness, for a quite long period and died of multiple ailments, which developed after the said incident. It is in these circumstances the complainants have claimed for compensation under the provisions of the Consumer Protection Act 1986.
[5]. The complaint was primarily heard on 24/11/2015 and this Commission was pleased to admit the same and notice was issued to the opponents. On receipt of notice from this Commission, the opponent hospital and doctor appeared through advocate and filed reply contending therein that there was no deficiency in service on their part, that the complainants have not come with clean hands and not stated true and correct facts to this Commission, that the complainant has no right to file present complaint, that the complainant is not "consumer" within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It is submitted that the complainants have not placed any expert evidence to show that there was any error, fault, short coming etc. on the part of opponent Rnm cc1282015 Page 4 of 20 herein. It is also further stated that the disputes between the parties requires detailed evidence, which would not be possible in summery jurisdiction under the Consumer Act and therefore, this Commission should not exercise the jurisdiction under the Act. It is further stated that complainants have not joined Indus Hospital, Dr. Zala and Apollo Hospital as party in this case, though they are necessary party for the adjudication of the complaint. It is further submitted that the opponent No.2 is a qualified surgeon, having more than 25 years of experience and had carried out thousands of operations successfully during this tenure and there is not a single case of deficiency in service. On merits, it is submitted that patient was suffering from vomiting and had consulted Dr. Zala. When the medicines given by the said Dr. Zala could not yield proper result, he then advice for the sonography and it revealed that the patient had gall bladder stone. It is submitted that the patient came to him with the sonography report, which was studied by the opponent. Patient was examined thoroughly and she was counseled for surgery, which she agreed too. And therefore, she was hospitalized on 08/04/2014. It is submitted that with this consent, the opponent doctor agreed to perform surgery on next day. It is denied that the date of operation was fixed without clinical examination and investigation. It is also not true that neither examination of patient was done nor medicines were given prior to surgery. As such on admission, she was kept on conservative treatment but vomiting and pain remained constant and therefore, she was advised for the surgery. It is also a false statement that the Hansaben was taken to Operation Theater without examination by the concerned doctors and it is not true that she was brought to Operation Theater without pre-operative checkup. If it is said that no Anesthetist was called or introduce before the complainant and no consent were taken, then all these allegations are false and made just to win the sympathy of this Commission. Dr. Bhadresh Shah, Anesthetist had examined the patient before taking to OT. It is also not true that Rnm cc1282015 Page 5 of 20 after an hour or so, some staff member came out from the operation theater and informed the relatives that patient became serious. As such after anesthesia, patient started vomiting fall into unconscious stage and that has created a severe breathing problem. It has been replied that opponent No.2 doctor has not performed any surgery on patient and therefore, the question of negligence is not arise at all. It is not true that opponent doctor became confused and could not handle the situation. Opponent No.1 hospital is well equipped hospital and having life saving instruments and therefore, the allegation that unequipped hospital is not true. It is submitted that before induction of anesthesia, RT was tried to insert by anesthetist, but due to non co-operation by the patient, it was not able to pass. IV sedation was given and reinsertion of RT was tried. However, at that time she again vomited. Immediately patient was turned to one side and given head low potion, intra oral suction was done, patient had sever coughing and felt respiratory distress and therefore, immediately endo-tracheal intubation was done. Senior physician Dr. Paresh Shah was called upon. As soon as he came, under his guidance, the treatment started. Patient was well ventilated and little improvement seen. However, the patient was not able to tolerate tube so extubation was done and patient was transferred to ward.
[6]. During this patient never suffered any cardiac or respiratory arrest as alleged by the complainant. There was no question of calling cardiologist or pulmonologist. Patient was timely and properly managed by anesthetist, since no surgery was started and therefore, patient was transferred to ward without any procedure. Immediately after shifting the patient to ward, her condition started deteriorating in presence of physician & anesthetist and therefore another anesthetist Dr. Shahil was called to assist Dr. Bhadresh Shah. Condition of patient was discussed and jointly arrived at conclusion that patient needs better monitoring support throughout and therefore advised for shifting of patient to Indus Rnm cc1282015 Page 6 of 20 Hospital. The patient was shifted to Indus Hospital in ambulance with continuous supply of oxygen along with the doctor.
[7]. Initially patient recovered well in Indus Hospital. However, during her treatment, her lung secretion was sent for analysis, which showed the presence of TB germs, which was suggesting subclinical non manifested TB infection. The hospital staff of the Indus Hospital has taken care of the patient but it was not within the personal knowledge of the present opponent. It was also not within the knowledge of the present opponent that patient was shifted to Apollo Hospital from the Indus Hospital, and what treatment she was given at Apollo Hospital. The opponent doctor states that when the opponent has not carried out any surgery, there cannot be any allegations of negligence against the opponent doctor. It is also further submitted that the complainants have mala-fide intention and therefore, avoided to join Apollo Hospital and Indus Hospital as parties to this complaint. Although the opponent do not have any personal knowledge about the treatment given to the patient at above mentioned but Hospital from the death certificate issued by the Apollo Hospital, it is stated that death, the cause of death was Sepsis, shock, MODS in a K/C/O sub massive PE, Hypertension, Severe RV dysfunction, pulmonary TB, hypothyroidism, bed ridden state. Thus, the opponents have denied the liability under the Consumer Protection Act and prayed for dismissal of the complaint.
[8]. The complainant thereafter filed a formal rejoinder, which is nothing but the reiteration of the fact stated in the complaint and denial of the facts stated in the written statement. The complainants have disputed genuine of documents produced along with the reply of the opponent. It is alleged that the documents are fabricated, tailor made to suit defense and therefore called upon opponent to prove documents.
Rnm cc1282015 Page 7 of 20[9]. Both the parties thereafter moved application for cross-examination of either party‟s witnesses. The Commission had permitted to prepare interrogatory questions and directed to exchange with the counter parties. The complainants have prepared interrogatory and served upon the other side. The opponents have also prepared interrogatory and have served upon the complainants. Both of them have also filed replies to the interrogatories question put to them. Since they did not want to lead further evidence, both the parities were called upon to submit written submission which they have produced on record. After written submissions, both the parties were called upon to make oral submissions.
[10]. Heard Mr. M.K. Joshi for the complainant and Mr. Narendra S. Thilramani for the opponent. Mr. Joshi has submitted that the patient had complaint of vomiting for which she had consulted family physician and when there was no relief, doctor advised for sonography and it revealed that she had gall bladder stone. She was advised to consult surgeon and therefore, the opponent was consulted. The opponent doctor considering the report of sonography, advised for the surgery. Thus, prima facie patient had only history of vomiting and then gall bladder stone for which the services of the opponent doctor was hired. The patient was hospitalized a day prior to surgery in the opponent No.1 Hospital. It is submitted that record does not show that she was given any treatment during this hospitalization period. On the next day, the patient was taken to the operation theater. What had happened inside the operation theater that is not known to the complainants but it is admitted fact that the patient become unconscious. It is submitted that everything happened under the management of opponent No. 2 doctor and therefore, it is duty on the part of opponent doctor to explain the chain of events and place on record the complete documents in support thereof. However, the record does not show that the doctor had carried Rnm cc1282015 Page 8 of 20 out pre-operative assessment, which is must in every major surgery. Mr. Joshi also submitted that the opponent doctor explained that the difficulty arose when tube was tried to be inserted when patient was in Operation Theater. Now, for what purpose RT was needed to be inserted that the doctor has not explained. Thus this is a case of Res ipsa Loquitur. It is not in dispute that complainants or representatives were not allowed inside the operation theater. Under such circumstances, it is for the doctor to prove that there was nothing wrong on his part and he has performed his duty diligently. Mr. Joshi relied upon the Judgment of Abhrem Rathod verses Dr. Shailesh Shah reported in 1996 (1) CPJ 243 given by this Commission, wherein it was held that the details of operation and finding during course of operation are within the special knowledge of the doctor performing operation and his team. Therefore, it was for the doctor to explain satisfactorily as to what had been happened in the course of the operation. Which resulted in this complication, it is for him to explain. Mr. Joshi submits that in the instant case, it is rather case of the opponent doctor that the operation was not even started and even than incident has occurred therefore, surgical complication has not taken place. If not proved, the doctor is liable. He also relied upon the judgment in the matter between Arunaben Kothari Vs Navdeep Clinic report in 1996 (3) CPJ 605 and in the said case also, it was held that the doctor is liable to explain the chain of events that has taken place inside the operation theater.
[11]. Mr. Joshi also submitted that when the doctor had not performed pre-
operative assessment by competent doctor, the opponent surgeon would not have ventured for the surgery. In the instant case, the doctor has replied that he has carried out pre-operative assessment through physician. Presuming for the sake of argument that what doctor says is correct, even then the doctor has to explain, when the patient was fit for surgery, how it went wrong. Therefore, the doctor‟s statement that pre-
Rnm cc1282015 Page 9 of 20operative assessment done is not believable. Mr. Joshi submits that the documents placed on record are concocted and cannot be believed. The opponent doctor has taken no pain to prove those documents. Mr. Joshi has referred the reply of the interrogatories and particularly question No. 15 & 16 which reads as under:
"15. Is it true that you advised to shift the patient to Indus Hospital?"
Reply:
"Due to her oxygen concentration started falling and she became breathless in the room, so it seemed that she may need Intratracheal intubation and continuous Respiratory Support and oxygen as patient has aspirated vomited content. Regarding shifting to Indus Hospital oral explanation was given, if patient may have not shifted, she may have developed further complications threatening to life, this decisions was taken and informed to the relatives to safe guard the best interest of patient."
"16. Why she was shifted to Indus Hospital?"
Reply:
"As stated aforesaid patient had developed complications of vomiting, prior to the anesthesia to be given for surgery, as such what was necessary for the patient was informed to the relatives and to the best interest of patient she was shifted to Indus Hospital along with myself and anesthetist doctor along with necessary support."
Mr. Joshi submitted that in reply, the opponent Surgeon admits fall of oxygen concentration. Now, what was the reason behind it and especially when the surgery was not even started, who else was attending the patient that is not disclosed. I am of the opinion that reason may be anything, doctors have to explain it. The said doctor ought to have been examined as witnesses in this case. The story stated by the doctor cannot be believed. Thus, Mr. Joshi submits that the opponent doctor is liable for the negligent act and complainant should be awarded compensation as prayed for.
Rnm cc1282015 Page 10 of 20[12]. Heard Mr. Tahilramani, he submits that the complainant has submitted the untrue facts and suppressed the correct facts from this Hon‟ble Commission. He further submits that complainant has not examined any witnesses as such there is no expert evidence produced by the complainant. It is well settled law and principle unless the experts evidence is produced, doctor cannot be held responsible and liable for the negligence. He also submits that the complainant has submitted interrogatory to complainant and reply filed by the present opponent, no negligence is proved, on the contrary it is proved that opponents were very vigilant and prompt in providing the emergency service to the patient. He further submits that the complainant is failed to prove any allegation. That the complainant has alleged opponents were negligent while treating patient, but failed to show or prove what sort of negligence committed by the opponents. He further submitted that opponents have not performed Surgery; therefore question of negligence does not arise at all. It is submitted that she was promptly shifted without wasting any time with accompanied occurred prior to surgery. He further submitted that it is admitted position prior to the surgery necessary fitness certificate was obtained from Dr. Paresh Shah dated 08/04/2014 which is produced on record. It is also clear from consulting with opponent doctor on 08/04/2014 that Hansaben was suffering from abdomen pain, vomiting and gall bladder stone. She was advised for the removal of the Gall Bladder stone by opponent but before surgery can be performed, her conditioned worsen as such necessary emergency treatment, medicines and utmost care was provided by the opponents. She was shifted to the Indus Hospital for better management. He further submits that patient continued vomiting till late evening therefore to relieve vomiting and as part of pre-operative operation to empty stomach and for better visualization of operative area inserted Ryle‟s Tube in the late evening, but due to reluctance of patient same was not inserted. Complainant has neither joined Hospitals (Indus / Apollo) nor examined doctors of those Rnm cc1282015 Page 11 of 20 hospitals who treated patient. This clearly shows that complainant with mala-fide intentions, to extort money from the opponents, have filed present complaint. He also submits considering age and status of the complainant, the claim is highly exorbitant and exaggerated. Further no evidence is produced with regards to the income or whether she was earning as such the claim made is excessive and exaggerated with a view to get higher compensation.
[13]. From the aforesaid sets of facts, following are undisputed facts and it has to be ascertained whether liability of doctor or opponent hospital can be established or not. It is case of the complainant that she had vomiting and it could not be controlled by medicines and therefore, she was advised for the sonography. The report revealed that she had gall bladder stone. It is also not in dispute that she had complaint of recurrent vomiting even when she consulted the opponent doctor. It is also not disputed that opponent doctor had examined her and on the basis of sonography report advised for surgical procedure. Therefore, acceptance of patient by competent doctor is not in dispute. There are different versions as to pre-operative procedure. However, it is not disputed that complainant no.2 had signed consent form may be blank even. The complainant has raised doubts about genuineness of these documents and alleged that name of the anesthetist was not mentioned when it was signed by complainant. In the said consent form, name of surgeon and anesthetist are mentioned. Name of procedure to be done is also mentioned. The signature of the complainant No.2 is found at the bottom of the page. Therefore, it cannot be said that consent was not taken at all. It is to be remembered that in the complaint itself it is stated that complainant No.2 had signed on the blank forms. This admission is sufficient to establish that prior to surgery consent was obtained.
[14]. The opponents stated to have produced treatment papers along with reply and document which is at page 131 (dt. 8/4/2014) claimed to have Rnm cc1282015 Page 12 of 20 First consulting paper. In this case paper, the doctor noted clinical observations made by him. It seems from the record that patient was obese; having mild distension of upper abdomen, tenderness present and peristalsis was found weak. Prima facie, I do not see any reason to doubt the contents of the documents. The doctor had advised for surgery that is also clearly mentioned. Page No. 133 is also the record of hospital and it looks like part of indoor hospitalization record. Now, this document is also dated 08/04/2014. In this document, it seems that the doctor has noted that random blood sugar (RBS) which might have been observed at that time and it was 120. Thus, patient cannot be said diabetic from this observation alone. In the said paper, there is a note that nature of surgery is explained and general condition of patient is shown as good. There is no timing mentioned in this paper but preoperative order suggests that there was instruction to keep patient NBM (Nothing by mouth). In the case paper it is mentioned that reference was made for pre-operative assessment by Dr. Paresh Shah. This corroborates with reply as it is mentioned in reply that Dr. Paresh Shah was referred for pre-operative assessment. Page 134, is clinical observation made by Dr. Paresh Shah. But, handwritings of page 133 and 134 if compared, prima facie, it seems to be identical. Under these circumstances, it is not understood, by whom these papers were written. In the same paper, it reads as "RT Insertion" below that it is mentioned that patient did not swallowed to and refuse further insertion. It is not understood, in case paper of pre operative assessment, how RT Insertion is noted? Surprisingly, no timings have been recorded.
[15]. On page No. 135 which is letter head of Dr. Paresh Shah dated 08/04/2014. In this paper, it is mentioned that patient was seen at Parth Hospital for pre-operative assessment, respiratory system having no difficulty and there was recommendation that patient can undergo surgery with guarded, due to age and it is signed by doctor. If Dr. Paresh Rnm cc1282015 Page 13 of 20 Shah had written notes separately then who else had written note in case papers of hospital. Interestingly, handwritings in this paper does not match with earlier documents and different. Page No. 136 stated to have case paper of Parth Hospital, wherein it has been mentioned that patient was taken in OT at 12 noon for induction by a vast during pre-operation RT insertion in semi sitting position. The note further made by doctor is not properly readable but it reads that patient had severe coughing, immediately RT insertion was given, mouth suction was done and ventilation was given with 100% oxygen. Now, who has written this note at 1.00 p.m. that is nowhere explained in the reply. It is but obvious that RT insertion must not have been done by the surgeon. The opponent doctor has not come out with complete details as to happening of events inside the operation theater. Mr. Joshi has rightly submitted that the doctor was duty bound to explain the chain of events that has taken place inside the operation theater. The opponent doctor has neither filed affidavit of Dr. Bhadresh Shah nor of any assistant who was inside the operation theater. The fact is required to be explained by opponent doctor. It is not also understood, when the patient was kept on "NBM" as ordered earlier, then what was the need for insertion of RT tube. There is no answer from the opponent doctor. If the patient was kept NBM from the earlier day, obviously stomach must have been emptied by that time and there was no need for RT insertion. In these circumstances, it is most important to have explanation for the need of RT insertion by anesthetist or by anybody else. If that is not explained, obviously, presumption can be made that facts are not disclosed correctly and suppressed information as to something had happened inside the operation theater. There is no complete discloser made by the opponent doctor. It is also to be kept in mind that the doctor has obtained certificate of fitness for surgery by competent physician. If it is stated correctly in the so called treatment papers, even Dr. Gajjar himself has noted general condition of patient as "good" then what had happened Rnm cc1282015 Page 14 of 20 that lead to insertion of the tube. It is also important to note that doctor says that surgery was not even started, but fall of oxygen saturation was observed. Therefore, it is for the doctor to explain why and what lead to fall of oxygen saturation. All these events remained unanswered.
[16]. The opponent doctor has not produced supporting evidence by way of witness affidavit who were present there. It is not in dispute that patient was "unconscious" thereafter and was shifted to Indus Hospital and where she was kept on ventilator. In absence of any plausible explanation, the doctor can be held guilty of negligence applying the principles of Res ipsa Loquitur. It is not in dispute that everything was under the control and management of opponent doctor. If anesthetist was in fact there, he must be aware and he could have been examined as witness also. No other evidence had been produced on record.
[17]. In United India Insurance Company Limited vs Samir Chandra Chaudhary (2005-3-CPJ-2(SC)) the Hon‟ble Supreme court observed as under.
"Admission is the best piece of evidence against the person making admission."
Referring judgment of Avadhkishor Das vs. Ramgopal &ors (AIR-1979- SC-861) the Apex Court observed as under:
"it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative in interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted.... The effect of the admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted must be taken to be established."
Thus, if evidence on record read collectively, as it stands, it is beyond doubt that the complainant has discharged his initial burden to prove that on the date of surgery, patient had no other problem except vomiting or gall bladder stone and for which surgery was undertaken.
Rnm cc1282015 Page 15 of 20It is also observed by the Hon‟ble Supreme Court in V Kishanrao vs. Nikhil Super specialty Hospital (2010-3-CPJ-1(SC)) that in every case of medical negligence, opinion of an expert is not necessary. At this juncture, it would be advantageous to place reliance on the judgment of Hon‟ble Supreme Court in the matter between Savita Garg vs The Director, National Heart Institute (2004-4-CPJ-40(SC)) which reads as under:
"The patient once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service and if it does not, then the hospital cannot take shelter under the technical ground that the surgeon concerned or the nursing staff, as the case may be, was not impleaded, and therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital which engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution / hospital than that on the claimant."
It is important to note that complication arose and the patient went in coma within four walls of operation theatre where patient‟s relative had no access. Whatsoever may be reason, the onus is on the doctors and the paramedical staff in the operation theatre to explain the events that happened there. In the said context the surgeon and anaesthetist have not been able to explain the events and the ultimate outcome. Thus, now it is for the opponent to prove that there was no negligence on their part but they failed.
[18]. When the opponents are held guilty of negligence and liable to pay damages to the complainants. What compensation is payable that is to Rnm cc1282015 Page 16 of 20 be decided on the basis of sound principles of law. In Reliance General Insurance Co. Vs Shashi Sharma (2016-SCC-9-627) the Hon‟ble Apex Court said that just compensation means fair, adequate, equitable, reasonable and not arbitrary in any sense. In Nizam Institute of Medical Science vs Prasanth Dhananka (2009-2-CPJ-61(SC)) it is observed that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, and the court must not be chary of awarding adequate compensation. The "adequate compensation" must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. Moreover, life has its pitfalls and is not smooth sailing all along the way as the hiccups that invariably come about cannot be visualized. Life, it is said is akin to a ride on a roller coaster, where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two is minute or a yard. At the same time, it is often found that a person injured in an accident leaves his family in greater distress vis-a-vis a family in case of death. In the later case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution endures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.
[19]. Patient Hansaben lost her life untimely cannot be disputed. Loss of life of beloved family member cannot be compensated by any terms of money. It Rnm cc1282015 Page 17 of 20 is also true that no amount will fulfill the absence of her presence in her family but there is no alternative and therefore assessments are always made in terms of money. It is equally true that all damages should be calculated in terms of money and grant of damages would be helpful to deprived family. The kind of damage the patient had suffered the expenditure that she had incurred are matters which cannot be taken care of under simple multiplier method used in motor accident cases. It is in these circumstances, when the opponent is held guilty of negligence and liable to pay compensation to the legal heirs of deceased, before proceeding to quantification of compensation following facts are required to be taken care of.
[a]. Patient was aged 58 years when accepted for surgery.
[b]. She had no other health problem except vomiting and gall bladder stone.
[c]. She was maintaining her family even in absence of her husband though having no source of earning.
[d]. She was not able to take care for herself after the incident that took place on the date of surgery and remained bedridden thereafter.
[e]. Her family had incurred huge expenditure for her treatment despite limited resources.
[f]. Hiring of services of doctor was not free of charge.
[g]. She lived vegetative life till her death.
In past, the Hon‟ble Supreme Court has assessed notional income of a home maker at Rs. 10000/- per month. I am of the opinion that keeping her status as home maker in mind before surgery, her contribution should be assessed as lum sum amount of Rs. 5000/-and balance to be deducted for her own living expenses. She had no future prospects due to her age. Thus, her contribution to her family is calculated only for Rnm cc1282015 Page 18 of 20 more 8 years which would be loss of Rs. 480000/- (5000 x 12 x 8 = 480000/-) to her family.
Secondly, she remained in vegetative life for months and then lost her life for which legal heirs entitle for compensation, conservatively at least an amount of Rs. 300000/- (Rs.200000/- for loss of life and Rs.100000/- for her sufferance). As stated above, her family members must have been under great stress and agony and are entitle for compensation of Rs. 100000/-.
Thirdly, the complainants have claimed Rs. 20,00,000/- for expenses incurred towards medical treatment. However it can be seen from the record that complainants have placed on record copies of bills but all these treatment cannot be said direct result of action on the part of opponent doctor and therefore I would like to award Rs. 3,50,000/- in all towards medical expenses. Thus in all, the complainants are entitle to Rs. 4,80,000 + 3,00,000 + 1,00,000 + 3,50,000 = 12,30,000/- (Rs. Twelve lakh thirty thousand only) towards reimbursement and compensation from the opponent.
While awarding aforesaid compensation, it is also to be born in mind that the amount expended earlier should be given appropriate realistic value considering inflation that had taken place. Considering all these if the aforesaid amount is paid together with interest @ 8 % it would certainly meet with the end of justice. Therefore, following order is passed.
Order The Complaint no. 128 of 2015 is hereby partly allowed.
The opponents jointly and severally liabile to pay to the complainants the sum of Rs.12,30,000/- (Rs. Twelve lakh thirty thousand only) together with interest @ 8 % p.a. from the date of complaint till realization. The opponents are Rnm cc1282015 Page 19 of 20 directed to comply with this order within 60 days from the order failing which they are liable to pay interest @ 10 % from 16/8/2023 onwards.
The opponents are also further directed to pay the complainant cost of this complaint which is quantified at Rs.20000/-.
Pronounced by circulation on this 14th June 2023.
Mr. R N Mehta Member Rnm cc1282015 Page 20 of 20